I am assuming this is an accepted injury/body part issues that would allow retrospective UR (e.g. AOE/COE) . I recommend getting a copy of your doctors request RFA with the proof of service page of when it was sent to your claims adjuster. This proof of service page is important as it shows the date it was either faxed or mailed. It also shows if it was sent to only your claims adjuster OR if it was also sent to the UR company. Every insurance carrier has a preference if they want ALL requests sent directly to UR OR if they ONLY want it sent to them, so they can choose to approve it OR send it to UR. I recommend getting the doctors request so you know exactly what was requested and exactly when it was sent. Your attorney should also have this, and when a non compliant UR is taken to court what is needed other than the report is the proof of service page. It sounds like you may already have this report as you stated the date. If not, it can take some doctor's offices up to a month to send a request from the date of the exam and is usually not sent the same day of the exam for example. Your claims adjuster actually had 5 days to ponder if she was going to send to UR, and if the need for additional information would extend it to 14 days.
You need to discuss this with your attorney. In my opinion, a late UR or no UR is grounds for an expedited hearing and under the case law Sandhagen I and II it could be presumed authorized.
http://www.dir.ca.gov/wcab/2004-EB-7.pdf Since SB863 and the new IMR process this is untested waters. If you do get a late UR response on this and it is denied, I recommend appealing it, request an IMR and also ask your attorney to request an expedited hearing for late UR and request 5814 penalty. This all should be discussed with your attorney first on how he wants to proceed.
I am in agreement with a lien rep who believes a late UR may possibly be grounds for penalty under late IMR (again untested waters). If defendant fails to perform its UR requirements does the IMR process become involved at all because with no UR denial the injured worker cannot request and begin the IMR process (delay)? Those on the applicant side hope so.
LC 4062(b), as amended, now reads as follows:
If the employee objects to a decision made pursuant to Section 4610 to modify, delay, or deny a request for authorization of a medical treatment recommendation made by a treating physician, the objection shall be resolved only in accordance with the independent medical review process established in Section 4610.5.
LC 4610.5(d) and (e):
(d) "If a utilization review decision denies, modifies, or delays a treatment recommendation, the employee may request an independent medical review as provided by this section."
(e) "A utilization review decision may be reviewed or appealed only by independent medical review pursuant to this section. Neither the employee nor the employer shall have any liability for medical treatment furnished without the authorization of the employer if the treatment is delayed, modified, or denied by a utilization review decision unless the utilization review decision is overturned by independent medical review in accordance with this section."
As a respected lien rep previously wrote and I am in agreement and I will copy verbatim" No authorization from the CA, no denial, delay, or modification from UR = No ability to trigger the IMR process."
Also, LC 4610.5(i) indicates the following:
(i) "An employer shall not engage in any conduct that has the effect of delaying the independent review process. Engaging in that conduct or failure of the plan to promptly comply with this section is a violation of this section and, in addition to any other fines, penalties, and other remedies available to the administrative director, the employer shall be subject to an administrative penalty in an amount determined pursuant to regulations to be adopted by the administrative director, not to exceed five thousand dollars ($5,000) for each day that proper notification to the employee is delayed. The administrative penalties shall be paid to the Workers' Compensation Administration Revolving Fund."
It seems to me that failure by the CA to authorize the RFA, or for UR to deny, delay, or modify the RFA, would be "conduct that has the effect of delaying the independent review process[,]" --- thus subjecting the offending IC/TPA to a possible $5K per day administrative penalty.
The last sentence in LC 4610.1 states if your provider refuses to treat absent written certification from UR and written authorization from the CA: "In no case shall this section preclude an employee from entitlement to an increase in compensation under Section 5814 when an employer has unreasonably delayed or denied medical treatment due to an unreasonable delay in completion of the utilization review process set forth in Section 4610."
Again, these are new waters being tested. It is against the rules for an adjuster not to send a request for treatment to UR, unless the injury is in dispute. I would ask your attorney how he would like to proceed.
I am not an attorney.Anything I write should not be considered legal advice.I am writing from my own personal experiences,which is not from any sort of legal background. You should consult with an attorney over legal issues. In California, if you cannot get an attorney you can consult with an I&A officer.
